How the Swedish Pirate Party Platform Backfires on Free Software

Note: each Pirate Party has its own platform. They all call for
reducing copyright power, but the specifics vary. This issue may
not apply to the other parties' positions.

The bullying of the copyright industry in Sweden inspired the
launch of the first political party whose platform is to reduce
copyright restrictions: the Pirate Party. Its platform includes the
prohibition of Digital Restrictions Management, legalization of
noncommercial sharing of published works, and shortening of copyright
for commercial use to a five-year period. Five years after
publication, any published work would go into the public domain.

I support these changes, in general; but the specific combination
chosen by the Swedish Pirate Party backfires ironically in the special
case of free software. I'm sure that they did not intend to hurt free
software, but that's what would happen.

The GNU General Public License and other copyleft licenses use
copyright law to defend freedom for every user. The GPL permits
everyone to publish modified works, but only under the same license.
Redistribution of the unmodified work must also preserve the license.
And all redistributors must give users access to the software's source
code.

How would the Swedish Pirate Party's platform affect copylefted
free software? After five years, its source code would go into the
public domain, and proprietary software developers would be able to
include it in their programs. But what about the reverse case?

Proprietary software is restricted by EULAs, not just by copyright,
and the users don't have the source code. Even if copyright permits
noncommercial sharing, the EULA may forbid it. In addition, the
users, not having the source code, do not control what the program
does when they run it. To run such a program is to surrender your
freedom and give the developer control over you.

So what would be the effect of terminating this program's copyright
after 5 years? This would not require the developer to release source
code, and presumably most will never do so. Users, still denied the
source code, would still be unable to use the program in freedom. The
program could even have a “time bomb” in it to make it
stop working after 5 years, in which case the “public
domain” copies would not run at all.

Thus, the Pirate Party's proposal would give proprietary software
developers the use of GPL-covered source code after 5 years, but it
would not give free software developers the use of proprietary source
code, not after 5 years or even 50 years. The Free World would get
the bad, but not the good. The difference between source code and
object code and the practice of using EULAs would give proprietary
software an effective exception from the general rule of 5-year
copyright — one that free software does not share.

We also use copyright to partially deflect the danger of software
patents. We cannot make our programs safe from them — no
program is ever safe from software patents in a country which allows
them — but at least we prevent them from being used to make the
program effectively nonfree. The Swedish Pirate Party proposes to
abolish software patents, and if that is done, this issue would go
away. But until that is achieved, we must not lose our only defense
for protection from patents.

Once the Swedish Pirate Party had announced its platform, free
software developers noticed this effect and began proposing a special
rule for free software: to make copyright last longer for free
software, so that it can continue to be copylefted. This explicit
exception for free software would counterbalance the effective
exception for proprietary software. Even ten years ought to be
enough, I think. However, the proposal met with resistance from the
Pirate Party's leaders, who objected to the idea of a longer copyright
for a special case.

I could support a law that would make GPL-covered software's source
code available in the public domain after 5 years, provided it has the
same effect on proprietary software's source code. After all,
copyleft is a means to an end (users' freedom), not an end in itself.
And I'd rather not be an advocate for a stronger copyright.

So I proposed that the Pirate Party platform require proprietary
software's source code to be put in escrow when the binaries are
released. The escrowed source code would then be released in the
public domain after 5 years. Rather than making free software an
official exception to the 5-year copyright rule, this would eliminate
proprietary software's unofficial exception. Either way, the result
is fair.

A Pirate Party supporter proposed a more general variant of the
first suggestion: a general scheme to make copyright last longer as
the public is granted more freedoms in using the work. The advantage
of this is that free software becomes part of a general pattern of
varying copyright term, rather than a lone exception.

I'd prefer the escrow solution, but any of these methods would
avoid a prejudicial effect specifically against free software. There
may be other solutions that would also do the job. One way or
another, the Pirate Party of Sweden should avoid placing a handicap on
a movement to defend the public from marauding giants.